Tuesday, September 08, 2015

LEXINGTON, KY--"While we hope Judge Bunning enjoyed a leisurely holiday weekend," said Family Foundation spokesman Martin Cothran, "we are sorry Kim Davis had to languish in jail, away from her family. Judge Bunning has ordered her release, but we wonder why it came for Davis after spending six days in jail. Nothing has materially changed over the weekend. If she didn't deserve to be in jail today, she didn't deserve to be put there in the first place."

The Family Foundation, the group leading the effort in Kentucky to support Kim Davis, said that the release does not change the problem of threats to religious freedom. "There is no indication that the next person who exercises his or her First Amendment right to free religious exercise will not be thrown in jail too."

Cothran called for strengthening Kentucky's religious freedom protections. "We need to make sure this doesn't happen again," he said.

Cothran also openly wondered if Bunning had second thoughts over the weekend about what he had done. "Judge Bunning and others who have a low view of religious freedom protections must have realized over the holiday weekend that they had created a marytr and hurt their own cause. It's too bad it took the mobilization of tens of thousands of citizens to force her release."

8 comments:

Judge Bunning didn't have second thoughts, as his order made clear. He didn't want to put Davis in jail in the first place, but she gave him no choice. Now that she's wasted a beautiful labor day weekend in jail, he's giving her a second chance. If she once again orders her deputies to quit issuing marriage licenses, she'll end up right back in jail. Her case is nonsense; no government official has the right to close the door of his office on citizens the official has a legal duty to serve.

I just read an interesting article in The New Republic that argued that rather than jailing Kim Davis, Judge Bunning should've simply stripped her of the responsibility to issue marriage licenses and assigned the job to the County Judge Executive pursuant to KRS 402.240. This might be the kind of accommodation that would satisfy you, but of course it would only work in a county in which the Judge Executive was willing to issue all marriage licenses, including same sex marriage licenses.

As well-intentioned as this release is, I think it's taking the wrong approach. The basic problem is that the federal government is usurping the power of the sovereign states. NO WHERE in the Constitution do the states delegate the power to regulate marriage to the federal government. So DC cannot legally redefine marriage along egalitarian lines.

I would agree with you if we were addressing something other than the Kim Davis case specifically. The Kim Davis case is primarily about religious freedom, and only secondarily about marriage. In the grand scheme of things, the latter is more important, but in this case, both legally and politically, the other issues is primary one.

Whether it is Muslim flight attendants not serving alcohol (if no one else will do it at minor inconvenience) to Davis not allowing anyone to get a marriage license (not even her clerks can issue, not even if her name is not on it), these religious freedom issues should not be allowed. Where is the limit?And Davis seems to have planned this all along.Why did she swear to uphold the US Constitution when she didn't intend to?

Davis told the U.S. District Court in July that although she had pledged to uphold the U.S. Constitution during her oath of office, she made no such pledge to abide by Supreme Court decisions.“Who do you understand has the final say as to what the United States Constitution says?” a lawyer for the plaintiffs asked her.“I don’t know,” Davis replied.She told the court she believed the Supreme Court had “redefined marriage.”“But you understand when the Supreme Court says that, that’s an issue of constitutional interpretation. That’s the law of the land. You do understand that?” a lawyer asked.“I suppose,” Davis replied.